Detailed Information

Cited 0 time in webofscience Cited 0 time in scopus
Metadata Downloads

상법의 관점에서 바라본 민법개정안의 법인제도Reviewing the Juristic Persons System under the Draft Bill of the Korean Civil Law from the Viewpoint of the Korean Commercial Law

Other Titles
Reviewing the Juristic Persons System under the Draft Bill of the Korean Civil Law from the Viewpoint of the Korean Commercial Law
Authors
장근영
Issue Date
Sep-2010
Publisher
한국비교사법학회
Keywords
Incorporation of Juristic Person; Approbation System; Association without Juristic Personality; Profit-making Association without Juristic Personality; Restrictions on the Representative Power of Directors; Mergers and Divisions of Non-profit Juristic Persons; 법인설립; 인가주의; 비법인사단; 영리비법인사단; 이사의 대표권 제한; 비영리법인의 합병; 분할
Citation
비교사법, v.17, no.3, pp.51 - 94
Indexed
KCI
Journal Title
비교사법
Volume
17
Number
3
Start Page
51
End Page
94
URI
https://scholarworks.bwise.kr/hanyang/handle/2021.sw.hanyang/172694
ISSN
1229-5205
Abstract
The Committee on the Amendment of Korean Civil Law, which is affiliated to the Ministry of Justice, announced in June 2010 the draft bill to amend the Juristic Persons System of the Korean Civil Code. One of the most important changes in the draft bill of 2010 is the introduction of the approbation system into the incorporation of a non-profit juristic person. Currently, a non-profit association may be formed as a juristic person subject to the authorization of the competent authorities. The draft bill of 2010 proposes that a non-profit organization be formed as a juristic person only subject to the approbation of the competent authorities. The Korean Civil Code § 39 provides that an association which aims at profit-making may be a juristic person in accordance with the conditions prescribed for the formation of trading companies. This section should be abolished, because a profit-making association currently may be formed as a business company with a juristic personality according to the Korean Commercial Code. The draft bill of 2010 introduces a new § 39-2, which provides that most provisions for a juristic person should apply to an association without juristic personality. While the new section offers a different type of business entity,entrepreneurs would not select this business entity due to its legal uncertainty. Representative authorities of directors may be restricted only by the articles of incorporation under the draft bill of 2010. The ‘restriction’ placed on the representative authorities seems to refer to the restriction of ‘an extent’ as well as of ‘a manner’ of the power of representation. Under the current § 60 of the Korean Civil Code, if any restriction placed on the power of representation of any director is not registered, such restriction cannot be set up against a third person despite his acting in bad faith. Protecting a third person acting in bad faith, however, is not consistent with the core principle of Civil Law. Thus, § 60 should be amended in accordance with § 37 of the Korean Commercial Code, which provides that matters as required to be registered shall not be effective as to any third person acting in good faith without registering them. The draft bill of 2010 newly adopts the system of mergers and divisions of non-profit juristic persons. Most provisions concerning mergers and divisions seem to refer to the ones of the Korean Commercial Code, which shows the tendency of ‘commercialization of civil law.’
Files in This Item
There are no files associated with this item.
Appears in
Collections
서울 법학전문대학원 > 서울 법학전문대학원 > 1. Journal Articles

qrcode

Items in ScholarWorks are protected by copyright, with all rights reserved, unless otherwise indicated.

Related Researcher

Researcher Chang, Kun Young photo

Chang, Kun Young
SCHOOL OF LAW (SCHOOL OF LAW)
Read more

Altmetrics

Total Views & Downloads

BROWSE